Is long Covid classed as a disability?

Year Published: 2022

In our ongoing series of employment law case studies, Katie Hodson discusses the recent case of T Burke v Turning Point Scotland in the Employment Tribunal. Long Covid was accepted as a disability in this case under the Equality Act as it meant the employee could not carry out his normal duties.

Background

The claimant contracted Covid-19 in November 2020. This then led to him experiencing extreme fatigue, sleep disruption and joint pain, which was diagnosed by his GP as post-viral fatigue syndrome and aftereffects of long Covid. The claimant stated that these symptoms were affecting his ability to carry out day-to-day activities.

The claimant submitted various fit notes during his period of absence. Two occupational health reports were obtained, both stating that he was fit to return to work and did not consider that he was disabled. The claimant however did not return to work as he was still struggling with fatigue.

In August 2021, the claimant was dismissed as a result of his continued sickness absence. The respondent stated in the dismissal letter that their view was that the claimant was too ill to return to work and that there did not appear to be a potential date on which he was likely to be able to return to full duties.

The claimant made a claim for disability discrimination and a preliminary hearing was listed to consider the question of whether the claimant’s long Covid was a disability under the Equality Act 2010.

Judgement

The tribunal held that the difficult issue in the case was whether the claimant was exaggerating his symptoms, as there was a lack of medical evidence to support his claims.

The tribunal felt that the claimant was a credible witness but noted that the GP reports he relied on did not particularise the issues affecting him in the period November 2020 (when he contracted Covid-19) to the date of his last fit to work note which covered August 2021.

Despite this, the tribunal found on the balance of probabilities that the claimant’s evidence was to be accepted and held that he was therefore disabled for the purposes of the Equality Act 2010.

Some of the reasons given by the tribunal for their decision are as follows:

 

  • In the period until the claimant’s last fit to work note there were severe restrictions on face-to-face GP appointments. On several occasions the claimant’s GP would issue a fit note without consultation. Three telephone assessments took place in which the claimant told his GP what symptoms he was suffering with. The diagnosis of long Covid was given after one of these assessments and, whilst this may not be as exhaustive as an in-person assessment, the tribunal was mindful that it was the way things were being dealt with at that time.
  • The respondent argued that the claimant’s condition was not the real reason for his absence. Discussions had taken place about a new integrated structure for the business and the respondent felt that the claimant was not happy about the proposed new role for him. They felt this was the real reason he was off work. The tribunal however did not accept this on the basis that a direct proposal about the new role was not put to the claimant until 1 July 2021. The tribunal held that this did not therefore suggest it formed a reason for his absence prior to that time.
  • The tribunal highlighted that there was no financial benefit to the claimant being off because his entitlement to sick pay ceased in June 2021 and he was not on benefits. The tribunal also took into account his 20 years’ service and held that this did not tend towards suggesting that he would be pretending to be unfit for work.
  • The respondent held an ill health review meeting in which it concluded that the claimant was too ill to return to work on the basis of GP fit notes, 2 occupational health reports and the claimant’s own evidence about his symptoms. The tribunal held that this reinforced that the claimant’s account was credible. The tribunal noted that following this meeting there was no conclusion that the real reason for the absence was because the claimant was unhappy with the proposed new role.

The tribunal also held that the claimant’s symptoms had a substantial adverse effect on his ability to carry out day-to-day activities, in that he could not walk to the local shop, cook or complete household chores. The tribunal also held that the effect was long term, as it was difficult to predict when the condition may be resolved.

 

Take aways

 

The main take away from this case is that the test for determining disability has not changed and is still going to be the turning point for these kinds of cases. The test focuses on the effect of a condition, not the name or label that’s given to it. Cases involving long Covid will still be decided in the same way as any other case in which disability needs to be determined. However, it does put us on alert ahead of cases yet to come with claimants relying on long Covid as a disability.

 

It is important to remember that this decision does not mean that every employee with long Covid will be disabled for the purposes of the Equality Act. Each case will still be determined on its own facts.

 

For more information, contact Katie Hodson, head of employment, on  0161 475 7670 or [email protected]

 

 

Related Tags: , , ,


Your Key Contact:

Share This:


Disclaimer: Our insight & opinion content provides general information and although we endeavor to ensure that the content is accurate and up-to-date, no representation or warranty, express or implied, is made as to its accuracy or completeness and therefore the information should not be relied upon. The content should not be construed as legal or other professional advice and SAS Daniels LLP disclaims liability for any loss, howsoever caused, arising directly or indirectly from reliance on the information on this website. Please seek appropriate legal advice from one of our suitably qualified lawyers if you require assistance.